H-2B Labor Certification Process

This program allows employers wishing to hire foreign workers in temporary non-agricultural occupations such as construction, landscaping or hospitality for a period not to exceed 9 months. The US Department of Labor allows 66,000 new employees per year broken out semi-annually. Timing is critical during this process and my take 4-6 months to complete the process.

An H2B temporary non-agricultural worker is an immigrant worker who is coming to the U.S. to perform temporary services or labor. The employer's need for the services or labor shall be either:

• A one-time occurrence: The employer has not employed workers to perform the services or labor in the past and the employer will not need workers to perform the services or labor in the future. The employer has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
• Seasonal need: The employer must establish that the services or labor are traditionally tied to a season of the year by a temporary event or pattern and is of a recurring nature. For example, landscaping cannot be performed during the winter months because the ground is to cold or housekeepers are not needed during the winters months at a ski resort.
• Peak-load need: The employer must establish that it regularly employs permanent workers to perform the services or labor, and it needs to supplement its permanent staff on a temporary basis due to seasonal or short-term demands with temporary employees who will not become a part of the regular operations.
• Intermittent need: The employer must establish that it has not employed permanent or full time workers to perform the services or labor, but occasionally or intermittently needs temporary workers for short periods.

The H2B Labor Certification Application shall be valid for up to 364 days, depending on the employers need, however, US Department of Labor regulation states no more than 9-months. Also, employers must guarantee the employees at least three-quarters of their contract average out by six or twelve weeks depending on the length of the contract.

After the application has been processed and given temporary certification by the Department of Labor, the final step is in submitting the necessary forms to United States Citizenship & Immigration Services (USCIS) for approval and issuance of the needed visas. Once the approval status and needed visas have been granted, the processing of foreign laborers, through the U.S. Consulate of the country chosen, can begin.